Rule 5: Law Firms and Associations Flashcards
Responsibilities of Partners, Managers, and Supervisory Lawyers Rule
A partner in a law firm, and a lawyer who individually or together with other lawyers possess comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurances that all lawyers in the firm conform to the MPC. (5.1a)
—applies to those with managerial authority—
A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the MPC. (5.1b)
—applies to those with supervisory authority—
A lawyer shall be responsible for another lawyer’s violation of the MPC if:
1) the lawyer orders or ratifies the conduct, with knowledge of the specific conduct, or
2) the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action. (5.1c)
Even without satisfying the above, a lawyer can violate (b) if a lawyer they supervise commits professional misconduct.
What must lawyer or firm policies include to ensure assurance of conformity to the MPC?
They must include policies designed to detect and resolve conflicts of interest, identify dates by which actions must be taken in pending matters, account for client funds and property, and ensure that inexperienced lawyers are properly supervised.
(5.1a)
If a lawyer knows of specific conduct violating the MPC, or a managerial lawyer fails to avoid or remedy that conduct, what is appropriate remedial action?
Depends on the immediacy of the lawyer’s involvement and the seriousness of the misconduct.
Direct supervisory authority is a question of fact.
(5.1c)
Responsibilities of a Subordinate Lawyer Rule
A lawyer is bound by MPC notwithstanding that the lawyer acted at the direction of another person. (5.2a)
A subordinate lawyer does not violate the Rules if that lawyer acts in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of professional duty. (5.2b)
What is a lawyer’s duty when they act on suggestion of a supervising lawyer, but the action elicits an arguable question of professional duty?
If the question can be reasonably answered only one way, the duty of both lawyers is clear and they are equally responsible for fulfilling it.
(5.2b)
Responsibilities Regarding Nonlawyer Assistance Rule
With respect to a non lawyer employed or retained by or associated with a lawyer:
a partner, and a lawyer who individually or with other lawyers possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer (5.3a);
a lawyer having direct supervisory authority over the non lawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer (5.3b); AND
a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules if engaged in by a lawyer if:
1) the lawyer orders or ratifies the conduct involved with knowledge of the specific conduct, or
2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action. (5.3c)
What is the extent of the obligation of lawyers in a firm to ensure that nonlawyers act competently and in line with the professional obligations of the lawyer?
The extent of obligation depends on the circumstances, including the education, experience, and reputation of the non lawyer; the nature of the services involved; the terms of any arrangements concerning the protection of client information; and the legal and ethical environments.
(5.3a)
Professional Independence of a Lawyer Rule
A lawyer may not generally share legal fees with a non lawyer (5.4a)
A lawyer shall not form a partnership with a non lawyer if any of the activities of the partnership consist of the practice of law (5.4b)
A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer’s professional judgment in rendering such legal services (5.4c)
A lawyer generally shall not practice with or in the form of a professional association authorized to practice law for a profit if (1) a non lawyer owns any interest therein, (2) a non lawyer is a corporate director or officer thereof, or (3) a non lawyer has the right to direct or control the professional judgment of a lawyer. (5.4d)
Are there any instances where a lawyer or law firm may share legal fees with a non lawyer?
Yes:
(1) an agreement by a lawyer with the lawyer’s firm, partner, or associate may provide for the payment of money over a reasonable period time after the lawyer’s death, to the lawyer’s estate or specified people
(2) a lawyer who purchases the practice of a deceased, disabled, or disappear lawyer may (subject to 1.17) pay to the estate or other representative of that lawyer the agreed-on purchase price
(3) a lawyer or law firm may include non lawyer employees in a compensation or retirement plane even though the plan is based in whole or in part on a profit-sharing arrangement
(4) a lawyer may share court-awarded legal fees with a nonprofit organization that employed, retained or recommended employment of the lawyer in the matter
(5.4a)
Is there any instance that a nonlawyer may own interest in a law firm or association?
No, except that a fiduciary representative of a lawyer’s estate may hold the lawyer’s stock or interest for a reasonable time during administration of the estate.
(5.4d1)
Unauthorized or Multijurisdictional Practice of Law Rule
A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so. (5.5a)
A lawyer who is not admitted to practice in this jurisdiction shall not (1) establish an office or other systematic and continuous presence in the jurisdiction for the practice of law, except as authorized by MPC or law; or (2) hold out to the public or otherwise represent that the lawyer is admitted to practice law. (5.5b)
A lawyer admitted in another jurisdiction and is not disbarred or suspended from practice in any jurisdiction may provide in a different jurisdiction temporary legal services if they:
(1) are undertaken in association with a lawyer who is admitted to practice in that jurisdiction and who actively participates in the matter
(2) are in or reasonably related to a pending/potential proceeding before a tribunal, if they or the person they are assisting is authorized by law/order to appear in such proceeding (or reasonably expects to be authorized)
(3) are in or reasonably related to a pending or potential alternative dispute resolution process, as long as the services are related to the lawyer’s practice
(4) do not relate to 2 or 3 and are related to the lawyer’s practice in a jurisdiction where the lawyer is admitted to practice (5.5c)
A lawyer admitted in a US or foreign jurisdiction and is not suspended or disbarred anywhere, may provide legal services through an office or other presence that:
(1) are provided to lawyer’s employer or organizational affiliate, and if foreign, advice is based on the advice of an authorized lawyer
(2) are services the lawyer is authorized by law or rule to provide in this jurisdiction (5.5d)
For purposes of (d), the foreign lawyer must be a member of good standing of a recognized legal profession in a foreign jurisdiction, where they are counselors or lawyers and subject to effective regulation and discipline by a duly constituted professional body or public authority (5.5e)
Restrictions on the Right to Practice Rule
A lawyer shall not participate in offering or making:
a partnerships shareholders, operating, employment, or similar type of agreement that restricts the right of a lawyer to practice after the termination of the relationship, except an agreement concerning benefits upon retirement (5.6a)
an settlement agreement restricting a lawyer’s right to practice (5.6b)
–Does not apply to sale of law practice, where restrictions are proper–
